United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 20, 2013*

Decided June 24, 2013

Before

RICHARD D. CUDAHY, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 12‐2303

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

ISRAEL GARCIA‐IBAR,   

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Western Division.

No. 11 CR 50056‐1

Frederick J. Kapala,

Judge.

O R D E R

Israel Garcia‐Ibar, a citizen of Mexico, was removed from the United States in

2005 after incurring felony convictions for aggravated battery and aggravated driving

under the influence. He returned illegally later that year, and immigration authorities

found and arrested him in 2011. He pleaded guilty to being in the country unlawfully after

removal, 8 U.S.C. § 1326(a). The district court calculated a guidelines imprisonment range of

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2)(C).
No. 12‐2303 Page 2

77 to 96 months based on a criminal history category of VI and a total offense level of 21,

see U.S.S.G. §§ 2L1.2(a), (b)(1)(A)(ii), 3E1.1, and sentenced him to 82 months.

Garcia‐Ibar, who has chosen to appeal pro se, contends that the district court

overstated his criminal history score by adding 6 points for several juvenile offenses,

see U.S.S.G. § 4A1.2(d)(2)(A), (k)(2)(B), and another 2 points for reentering the country

while on parole for his battery conviction, see id. § 4A1.1(d). He did not object to these

points at sentencing, but neither did his lawyer waive the issue when he broadly conceded

that the court’s guidelines calculations appeared to be correct. The lawyer’s statement does

not evince an intent to waive this specific challenge, so we construe the absence of an

objection as a forfeiture and review for plain error. See United States v. Allen, 529 F.3d 390,

394–95 (7th Cir. 2008); United States v. Jaimes‐Jaimes, 406 F.3d 845, 848–49 (7th Cir. 2005).

Two of the disputed juvenile offenses were committed in 1999, and the third in 2001.

Garcia‐Ibar argues that none of these offenses should have garnered criminal history points

because he was not found by immigration authorities until 2011. Crimes committed before

age 18 count for 2 points each if the defendant received a sentence of at least 60 days

confinement (including confinement imposed after revocation of parole) and commenced

the offense of conviction within 5 years of release. U.S.S.G. § 4A1.2(d)(2)(A), (k)(2)(B), &

cmt. n.8; United States v. Eubanks, 593 F.3d 645, 655 (7th Cir. 2010).

Garcia‐Ibar was released from confinement in early 2002 (he served the three

juvenile sentences concurrently), almost a decade before he was arrested in 2011 on the

§ 1326(a) charge. But in focusing on that arrest he misconstrues the applicable time period.

A violation of § 1326(a) begins at the time of reentry, United States v. Are, 498 F.3d 460, 464

(7th Cir. 2007); United States v. Lopez‐Flores, 275 F.3d 661, 663 (7th Cir. 2001), and Garcia‐Ibar

told a probation officer that he returned to the United States in September 2005, a fact noted

in the presentence report. The court adopted this finding without objection and thus

correctly found that Garcia‐Ibar’s release from confinement for the three juvenile offenses

occurred within the 5‐year period. See Are, 498 F.3d at 464; Lopez‐Flores, 275 F.3d at 663.

Garcia‐Ibar likewise asserts that the district court incorrectly added 2 criminal

history points for committing the § 1326(a) offense while on parole. He notes that his parole

for the 2005 battery conviction ended in April 2006, long before he was “found.” Because

Garcia‐Ibar reentered the United States seven months before his parole ended, the court

correctly added 2 points. See U.S.S.G. § 4A1.1(d); United States v. Garcia‐Vasquez, 379 F.3d

451, 453 (7th Cir. 2004); Lopez‐Flores, 275 F.3d at 663. Thus the sentencing judge committed

no error—plain or otherwise—in calculating Garcia‐Ibar’s criminal history score.

AFFIRMED.